Bannon is pulling one over on Trump. There is zero reason to exit the Paris climate accord.
Pulling out of Paris is incredibly reckless and would shoot the US in the foot.
The debate over whether to officially pull the US out of the Paris climate accord has been raging in the Trump White House for months. There have been widely announced meetings, then delays of meetings, and then more meetings.
Apparently, however, the end of the dithering is nigh. At an April 29 rally, Trump promised a “big decision” on the matter in the next two weeks. Now, according to the administration, that decision has a firm date: Tuesday.
The outcome is of interest not only for substantive reasons (more on those below), but for reasons of Kremlinology. Like perhaps no other single issue, Paris has divided Trump’s circle of advisers. Which side he comes down on will reveal a great deal about who is currently in his favor.
Leading the charge to stay in are “the globalists” (as Trump’s hardcore supporters derisively refer to them): White House economic advisor Gary Cohn, Secretary of State Rex Tillerson, Secretary of Energy Rick Perry, Secretary of Mideast Peace and the Opioid Epidemic Jared Kushner, Secretary of #Brands Ivanka Trump, and, according to The New York Times, “a slew of foreign policy advisers and career diplomats.”
It’s a mess. And as usual, it is impossible to know what to make of all the contradictory leaks. Trump himself hasn’t exactly made things clear, though he has called Paris a “bad deal.”
For now, let’s remind ourselves of the substantive issues involved. In particular, I want to drive home a simple point that has not been made clear enough in all the reporting on this: there is no reason to pull out of the Paris agreement.
Even if, like Trump, you think climate change is a hoax; even if, like Trump, you think pollution regulations kill jobs; even if, like Trump, you want to Make America Great Again — there’s just no reason to do it. It will cause serious damage in exchange for absolutely no practical advantage.
Paris does not constrain Trump a single bit
Paris represents a conceptual breakthrough in international climate talks. After decades of frustration, negotiators finally accepted that the United Nations Framework Convention on Climate Change (UNFCCC) simply does not have the power or legal authority to force serious action to reduce carbon emissions. A comprehensive, legally binding, unanimous agreement was always an impossible dream.
Instead, the Paris accord relies on the power of transparency and peer pressure. It asks participants only to state what they are willing to do and to account for what they’ve done. It is, in a word, voluntary.
That doesn’t mean it doesn’t matter. Public pledges are a powerful driver. They can spur and organize domestic policy. Failure to live up to them can bring reputational damage. But they have no legal force in and of themselves.
Here’s how the process works. Each participating country determines, on its own, the policies and emission reductions to which it is prepared to commit. It then submits a Nationally Determined Contribution, or NDC — a set of emission targets and a plan to achieve them. (Of 197 participating countries, 144 have submitted NDCs.)
(As it happens, the US is undergoing its first review this week. Just a few days ago, it submitted its written answers to other countries’ questions; there will be live, public exchanges on May 12 and 13, at the climate talks in Bonn, Germany. Said written answers consisted mainly of this sentence, repeated again and again: “The administration is reviewing existing policies and regulations in the context of a focus on strengthening U.S. economic growth and promoting jobs for American workers, and will not support policies or regulations that have adverse effects on energy independence and U.S. competitiveness.” In other words, “bugger off.” Carbon Brief has the details.)
The spirit of the Paris negotiations was to solicit ambition, to get every country on record with specific action plans. In order to do that, negotiators deliberately refrained from including any legally enforceable compliance regime. The only thing participating countries have to do is a) have an NDC on record, and b) report emissions during regular reviews.
Trump can weaken the US NDC, without penalty. He can roll back all of Obama’s carbon regulations, without penalty. He can simply fail to meet the targets of the NDC, without penalty. All he has to do is explain himself at the five-year review, and the explanation can be as minimal as he likes.
Paris’s only constraint on Trump comes through intangibles like reputation and influence. It imposes absolutely no practical or legal constraint on his actions — not on trade policy, not on domestic energy policy, nothing.
That means all talk of Paris being a “bad deal” for the US, or hurting US trade, or affecting the US coal industry in any way, is nonsense. Paris does not and can not do any of those things. The US voluntarily offered up an NDC and can voluntarily offer up a different or weaker NDC any time it wants.
This is an awkward fact for the nationalist contingent. They need Paris to be a boogey man. So they’ve ginned up a novel legal argument.
The bogus legal argument for exiting the Paris accord
The new legal argument has to do with Article 4.11 of the Paris agreement, which says that a participating nation “may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition.”
“The question,” says the New York Times, “is whether the ability to ‘adjust’ is like a ratchet, allowing progress only in one direction — upward — or if it permits a country to weaken its commitment without violating the terms of the deal.”
Except … that’s not really a question. It’s an utterly fake question. No one credible thinks for a moment that 4.11 creates any kind of legally enforceable prohibition against weakening an NDC.
“It came up,” Todd Stern, Obama’s lead climate negotiator who’s now a lecturer at Yale Law School, told me. “It was discussed and debated. There were countries that were saying they wanted a legal prohibition of any downward revision of an NDC. We thought that was a bad idea. It would cause any number of countries to lowball their target out of fear of getting stuck.”
A short and to-the-point brief from the Center for Climate and Energy Solutions (CCES) — co-authored by former State Department Deputy Legal Adviser Susan Biniaz, who was one of the authors of 4.11, in the room when it was being negotiated — summarizes:
When the question arose during the negotiation of the Paris Agreement whether a party could revise its NDC once submitted, many negotiators believed it went without saying that parties could, given that NDCs are “nationally determined.” Others, however, believed it was desirable to make this point explicit — thus the inclusion of Article 4.11. The option of legally prohibiting a “downward” revision was discussed and supported by some, but rejected. Some negotiators were concerned that, if downward adjustments were prohibited, Parties might offer less ambitious contributions in the first instance. Some believed the agreement would be more resilient over the long term if it enabled parties to make adjustments, rather than withdraw completely.
In sum, while a downward revision is liable to draw criticism, it is a legally available option under the Paris Agreement. [my emphasis]
CCES also debunks the loopy notion, which some journalists have taken seriously, that the “Charming Betsy” doctrine would open Trump domestic policy up to lawsuits based on its nonconformity to the US NDC.
Suffice to say: no, it wouldn’t. The Sierra Club had its lawyers look closely at whether they could sue the administration for failing to meet the targets of the US NDC. Their conclusion, in a May memo by the club’s Global Climate Policy Director John Coequyt obtained by the Washington Post: nope. No judge anywhere would go for that. (And if the Sierra Club won’t sue you …)
Pruitt has reportedly said that Paris would inhibit his ability to roll back the Clean Power Plan. He is either lying or very confused. The Paris accord has no legal bearing at all on whether Trump can scrap the Clean Power Plan or make any other change to domestic policy.
Again, it all comes back to the fact that the agreement was explicitly designed by negotiators to be voluntary, to solicit ambition without fear of penalty. It is, in the jargon, “non-self-executing.” It does not in itself create legal obligations, it merely indicates to domestic policymakers that they should do so. That’s how participating countries understand the agreement, as will any judge who might hear such a case.
There simply is no credible case to be made that Paris legally constrains Trump. It is propaganda being pushed by nationalists in the administration, in league with long-time right-wing climate denialists who want to permanently poison the well of international climate negotiations.
It’s nonsense and journalists should stop reflexively both-sidesing it.
In the end, the legal argument doesn’t have to convince anyone. It just has to muddy the waters. “If [White House counsel Don McGahn] really sits on this,” says David Victor, an international relations scholar at UC-San Diego, it could “keep there from being any further political deliberation on the consequences of pulling out of Paris.”
That seems to be the goal here — to railroad Trump into a decision based on phantom fears of other countries getting one over on him.
Pulling out of Paris is dangerous
Even if you think climate change is a hoax, pulling out of the Paris accord poses serious, tangible risks.
While climate change is a partisan football on the US cable news networks that shape Trump’s worldview, to the rest of the world, it is a real and growing threat. It’s a top priority for the governments of South Korea, Japan, and China. It’s a huge deal for Europe, including key partners on issues of real importance to Trump, like war and terrorism. “All the issues around Turkey, Syria, and Russia are going to play out in Europe as much as here,” says David Victor, an international relations scholar at UC-San Diego. “I think [Trump] is going start learning, especially as the G20 process unfolds, that pissing off the Europeans for no reason is not a good idea.”
In the process of working up to and through the Paris agreement, the US made dozens of bi- and multilateral deals on the side, with a wide array of countries, many in areas where the US has direct strategic interests. With China alone there are a good half-dozen bilateral agreements. Walking away from Paris means walking away from all that built-up capital.
“We are going to cede the strategic influence that we achieved, in part through our climate change diplomacy, to other parties,” says Andrew Light, a former State Department climate adviser now with the World Resources Institute. Rising powers like China will fill the gap, shaping the future of climate negotiations.
Staying at least notionally signed on to the Paris framework would allow the US visibility into what other countries are doing — the policies they are adopting, their progress on emission reductions, and the deals they are making with one another. It would give the US, as Tillerson says, a “seat at the table,” and open up opportunities for the US to make side deals on things that are climate-related but also serve other, more proximate goals — say, cuts in HFCs or cooperation on carbon capture and sequestration (which could help the US coal industry).
If we walk away, “we’re shooting ourselves in the foot,” Victor says. “70 percent of the damage is going to be to the US.”
Leaving the Paris agreement is good for one person only: Steve Bannon
In sum, pulling out of Paris will not enable Trump or his administration to do anything they couldn’t otherwise do. It is a reckless and entirely unnecessary thumb in the eye of world opinion.
It is also a signal from Bannon to Breitbart Nation that ethnonationalism, with its “deconstruction of the administrative state,” is alive and well in the White House (despite the otherwise complete triumph of standard GOP plutocracy). Bannon wants to keep Trump’s hardcore base on board by showing them that he intends to keep his most egregious campaign promises.
Such a move might temporarily restore Bannon’s reputation as a key player in the White House. It might offer a thrill to Trump’s core supporters, at least for a news cycle or two.
In exchange for that ephemeral political boost and a soothing stroke to Bannon’s ego, Trump could do serious, lasting damage — not only to the desperate global attempt to rally and prevent the worst of climate change, but to his own reputation, influence, and ultimate success.
There’s just no reason to do it.